J-A25003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
R.M.M. : No. 458 WDA 2021
Appeal from the Order Entered March 22, 2021,
in the Court of Common Pleas of Allegheny County,
Family Court at No(s): FD 16-004092-008.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 24, 2022
Appellant J.M. (Father) appeals the order of the Allegheny County Court
of Common Pleas, which awarded R.M.M. (Mother) primary physical custody
and sole legal custody of their three Children: 11-year-old daughter N.M.; and
8-year-old twins, daughter E.M. and son B.M. The trial court reduced Father’s
physical custody after determining the Children needed more structure during
the school year. Mother’s sole legal custody award is limited to narrow
decision-making powers regarding the Children’s mental health, after the
court found that Father’s refusal to acknowledge N.M.’s needs had caused her
to be without necessary treatment. On appeal, Father challenges these
substantive custody awards on multiple grounds: that the court’s decision was
based on improper gender preferences; that the decision was predicated upon
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* Retired Senior Judge assigned to the Superior Court.
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improper judicial notice; and that the court infringed on Father’s First
Amendment right to free exercise. After careful review, we affirm.
The record discloses the following relevant factual and procedural
history. The parties initially lived in Washington state prior to moving to
Pittsburgh, Pennsylvania in 2011. The parties separated in 2016, and the
marital home was sold. Mother and the Children moved to a new home in the
same school district, while Father moved to a neighboring suburb. That same
year, the parties entered into a custody consent order, which provided Father
with shared legal custody and substantial partial physical custody –
approximately 6 out of every 14 overnights.
However, litigation became frequent and increasingly acrimonious. In
May 2018, the court issued an order forbidding Father from speaking with the
Children about potential changes in the custody schedule. In November 2019,
Father filed for shared custody, and Mother counterclaimed for primary
custody and sole legal custody. In January 2021, Mother filed for contempt
of the May 2018 order, and the contempt hearing was consolidated with the
instant custody trial.1
The trial court’s consolidated hearing spanned three dates: February 8,
February 9, and February 24, 2021. A major focus of the custody dispute was
the Children’s mental health, and the parents’ abilities to respond to the same.
The court heard from both parties, personnel from the Children’s school
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1The court ultimately held Father in contempt of the May 2018 order. Father’s
appeal of that order is separately listed before this panel.
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district, as well as Dr. Jan Marlan, who conducted psychological evaluations.
Dr. Marlan recommended the court award shared physical and legal custody,
cautioning that a sole legal custody award would only increase the conflict
between the parties. The court disagreed. After extensive testimony, the
court determined inter alia that Mother was more likely to attend to the
Children’s mental health needs, and that the parties’ inability to communicate
and reach consensuses demonstrated the need for a sole decisionmaker – i.e.,
a sole legal custodian. See Order of Court, 3/22/21. The court awarded sole
legal custody for this limited purpose. In all other aspects, the parties shared
legal custody.
The court also determined the Children needed more focus and stability
during the school week, and it reduced Father’s partial physical custody.
Instead of Father exercising 6 out of 14 overnights, Father’s schedule was
reduced to alternating weekends with a weekly Thursday overnight. However,
the court awarded shared custody during the summer, on a week-on-week-
off basis. Id.
The court also denied the parties’ respective claims for sole legal custody
regarding the Children’s religious upbringing. In this respect, the trial court
allowed the parents to direct the Children’s religious upbringing as they saw
fit during their respective custody time; however, the order provided that
Father “must continue to cooperate with the Children’s participation in the
Jewish Faith[.]” Id. at ¶1.9(a).
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Father filed this timely appeal. He presents six issues for our review,
which we re-order for ease of disposition:
1. Whether the trial court erred and/or abused its discretion
by making a custody determination where a party
received preference based upon gender in violation of 23
Pa.C.S.A. § 5328(b)?
2. Whether the trial court erred and/or abused its discretion
by making a custody determination that is not supported
by the record and/or is based upon inappropriate judicial
notice?
3. Whether the trial court committed an error of law and/or
abused its discretion by making a custody determination
that relies at least in part on inappropriate judicial notice
and/or information outside the record with regard to
Attention Deficit Disorder / Attention Deficit Disorder with
Hyperactivity?
4. Whether the trial court erred and/or abused its discretion
by entering an order that awarded Mother sole legal
custody regarding the psychiatric treatment contrary to
the best interest of the Children as set forth in 23
Pa.C.S.A. § 5328(a)?
5. Whether the trial court erred and/or abused its discretion
by entering an order that reduced Father’s physical
custody contrary to the best interest of the Children as
set forth in 23 Pa.C.S.A. § 5328(a)?
6. Whether the trial court committed an error of law and/or
abused its discretion by failing to explicitly rule on the
request for legal custody regarding the religion of the
children and/or restricting Father’s ability to freely
exercise his religion in violation of the First Amendment
of the United States?
Father’s Brief at 21-22 (capitalization adjusted).2
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2 Father included a seventh issue in his concise statement of matters
complained of on appeal, but he has chosen to forgo that issue on appeal.
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We begin our analysis by acknowledging the pertinent scope and
standard of review:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must
accept findings of the trial court that are supported by
competent evidence of record, as our role does not include
making independent factual determinations. In addition,
with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand. However, we
are not bound by the trial court's deductions or inferences
from its factual findings. Ultimately, the test is whether the
trial court's conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
Insofar as Father presents a question of law, however, we note that our
scope and standard of review changes. As with all questions of law, the
appellate standard of review is de novo and the appellate scope of review is
plenary. E.C.S. v. M.C.S., 256 A.3d 449, 454 (Pa. Super 2021) (citations
omitted).
On multiple occasions, both the Supreme Court of Pennsylvania and the
Supreme Court of the United States have acknowledged that parents enjoy a
fundamental constitutional right to raise their children as they deem fit. See,
e.g., Interest of S.K.L.R., 256 A.3d 1108, 1126 (Pa. 2021); see also D.P.
v. G.J.P., 146 A.3d 204 (Pa. 2016); and see Troxel v. Granville, 530 U.S.
57 (2000) (recognizing the existence of a constitutionally protected right of
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parents to make decisions concerning the care, custody, and control of their
children) (citing U.S.C.A. Const. Amend. 14).
In Pennsylvania, custody disputes are governed by the Child Custody
Act, 23 Pa.C.S.A. §§ 5321-5340. In ordering any form of custody, the court
shall determine the best interest of the child by considering the sixteen
enumerated factors set forth in Section 5328(a). When – as was the case
here – a party seeks to modify the type of custody award, the court must still
conduct a Section 5328(a) analysis. See A.V. v. S.T., 87 A.3d 818, 824 n.4
(Pa. Super. 2014) (emphasis added); see also 23 Pa.C.S.A. § 5338
(“Modification of existing order.”); and see 23 Pa.C.S.A. § 5323(a) (“Award
of custody.”); cf. M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super. 2014)
(holding that a comprehensive Section 5328(a) analysis is not always
necessary when a party merely seeks modification of “a discrete custody-
related issue.”).
It is generally “within the trial court’s purview as the finder of fact to
determine which factors are most salient and critical in each particular case.”
M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). However, we note
that Section 5328(a) obligates the court to give weighted consideration to
those factors affecting the safety of the child. Moreover, Section 5328(b)
provides: “In making a determination under [the custody factor analysis], no
party shall receive preference based upon gender in any award granted under
this chapter.” 23 Pa.C.S.A. § 5328(b). After reaching a decision, the trial
court must delineate its reasons for the award on the record in open court, or
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in a written opinion or order near the time of the decision to allow a party to
take an effective appeal. See 23 Pa.C.S.A. § 5323(d); see also M.O., 85 A.3d
at 1064 n.5 (citations omitted).
With these principles in mind, we turn to Father’s first appellate issue.
Father alleges the trial court violated the Child Custody Act’s prohibition on
gender preferences, because its decision was predicated upon the belief that
women are better suited to respond to a child’s mental health. See Father’s
Brief at 27. To explain, the court awarded Mother sole legal custody after it
concluded that Father was not adequately responding to the Children’s needs
– specifically, N.M.’s need to be treated for Attention Deficit Hyperactivity
Disorder (ADHD). The court reasoned in its Pa.R.A.P. 1925(a) opinion:
I found the majority of the problems moving forward with
treatment for N.M. originated with Father, and his inability
or refusal to face the facts about his daughter’s condition.
Accordingly, since only one party could have legal custody
over this discrete issue, I chose the parent who was more
willing to listen to professionals and follow their advice.
Trial Court Opinion (T.C.O.), 6/2/21, at 11
Father claims the court’s findings were based on gender preferences.
To support his argument, Father cites four separate excerpts from the hearing
transcript, during which the court spoke in generalities about men and fathers,
and the fear of stigmas involving mental health treatment. See generally
Father’s Brief at 27-31.
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The first excerpt comes from the direct examination of Dr. Marlan, who
conducted the psychological custody evaluation. The court asked the witness
why Father resisted the idea of having N.M. seen by a child psychiatrist.
Dr. Marlan: I think he’s worried about seeing his
daughter seen as having – as crazy.
The court: I had the conversation with [Father] also
regarding the fact that in 15 years of doing
this I’ve never had a woman take that
position with this issue, never. It’s always
a man, it’s always the dad. I actually
consulted psychiatrists about this
phenomena and it just isn’t true. I had that
conversation, and in spite of that it still did
not occur, still has not occurred.
Dr. Marlan: What do you mean? What hasn’t occurred?
The court: [N.M.] has not seen a psychiatrist.
Dr. Marlan: Oh, I see.
The court: Some people think it is less important than
others, but she has significant difficulties
with friends.
Dr. Marlan: I hope somebody would ask him exactly why
he wants her medicated by a pediatrician
versus – not medicated by, but the
pediatrician to handle the medication.
The court: I think it is a negative answer. He doesn’t
want her to go to a psychiatrist. In any
event, the child is now eleven. It is over two
years. She’s now into puberty and has been
suffering with these problems untreated for
years and years.
Dr. Marlan: Well, I do understand that some parents
have objections to medicating their kids.
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The court: So do I.
Dr. Marlan: I have seen that many times. You know,
there is a position on that that’s worth
looking at, but in this particular case it seems
so clear to know that it would help this kid,
and she has to be on the right medication at
the right level, and the one best able to do
that is the child psychiatrist. And if it is
[Father], [Father], let your kid see a child
psychiatrist.
The court: Well, we had that conversation three years
ago. That is why I’m concerned about your
recommendation of shared legal [custody].
[The parents] have been fired by five
psychiatrists who refused to treat the child
because [the parents] couldn’t agree.
N.T., 2/8/21 (Day 1), 45-47 (emphasis added).
Later in the trial, the court again spoke in generalities about gender.
Father’s parenting abilities had been questioned after Mother submitted
pictures of the Children’s unkempt hair:
Father: I’m doing the best I can under the
circumstances.
The court: Would you agree that your best is not doing
a good job right now?
Father: I’m hoping things will get better when this
trial is over, because I think a lot of things
have been in preparation for this trial.
The court: Well, I would agree with your that - - let me
ask you this question. Did mom and you ever
have a conversation, like an e-mail – you
don’t talk on the phone – like an e-mail
regarding the children’s hair?
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Father: I don’t think she ever told me about it.
The court: I would agree with you certain things like
that mom may have been (indicating), taking
pictures of her hair so she could slam dunk it
with you at trial. I agree with you on that.
Maybe she will change my mind on direct
[examination]. I found that not to be in the
best interest of the children and kind of
horrifying and humiliating. I would have
come to you – I would have found a way to
build, earn, and maintain enough trust in you
in order to protect my child from a guy’s
rendition of what’s okay with girls. I know
that you didn’t know that because you
were never a teenage girl. I know that
because I was a teenage girl. I also
know that sometimes I have to tell men
that they don’t know things that ladies
know. That is partly because [you] haven’t
built, earned, maintained any trust with her,
or vice versa.
N.T. 2/9/21 (“Day 2”), 469-70 (emphasis added).
As Father’s case-in-chief wound down, the trial court provided its
preliminary assessment. In a self-described “speech,” the court explained
how the level of conflict between the parents – and their desire to be right, or
to win an argument – was detrimental to the Children. The court offered an
example of conflict avoidance from the trial judge’s own life, a time when she
needlessly took issue with how one is supposed to put dirty dishes in the sink.
The moral of the story was how partners must often decide whether to be
happy or whether to be right; that perhaps it is more important to be “fun to
live with,” than to be the winner of petty arguments. Id. at 471-72. The
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court then circled back to the hair issue and Father’s alleged resistance to
N.M.’s ADHD diagnosis:
The court: The fact you didn’t know about the hair is a
typical guy kind of thing. What is worse
is the fact that [Mother] didn’t talk to you
about it is a horrible thing. It is horrible. I
don’t know why it didn’t happen. I hope she
addresses it [during her case-in-chief].
If you were a babysitter, I wouldn’t have
allowed you to let my daughter’s hair go like
that. But [Mother] is like, you did that and
took pictures. I’m sure she will talk to me
about why she didn’t talk to you about it.
Maybe she did talk to you about it. I don’t
know.
I’m trying to explain to you what is so much
wronger with this case than my other cases.
It’s not the facts. It’s not the ADHD. Half of
my cases have ADHD. Almost 75 percent
of those cases have a dad who refuses
to admit that their child has anything
wrong with them, or thinks that they are
trying to label the child, and then I have
to go through this whole nonsense and
take legal custody away and all this
stuff.
Never once have I had a female, a mom,
refuse to go to a psychologist or
medicate a child, not once in 15 years.
So think about that, how much fun are you
to live with? As long as you’re no fun to live
with, you’re going to lose with your kids
because you’re not going to be able to make
any progress.
All right, re-cross [examination].
N.T. (Day 2), at 475-76. (emphasis added).
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Finally, Father cites the portion of the transcript when the trial court
delineated its findings in open court, pursuant to Section 5323(d). The court
addressed Factors 9 and 10 together. Section 5328(a)(9) inquires: “Which
party is more likely to maintain a loving, stable, consistent and nurturing
relationship with the child adequate for the child’s emotional needs.” 23
Pa.C.S.A. § 5328(a)(9). Section 5328(a)(10) inquires: “Which party is more
likely to attend to the daily physical, emotional, developmental, educational
and special needs of the child.” 23 Pa.C.S.A. § 5328(a)(10).
The court began the delineation of its findings under these Subsections
by opining that Father’s parenting style was wrong for these Children:
The court: [Father’s] not wrong because he doesn’t love
the Children. I believe he does love the
Children. But he’s wrong because he has a
narrative that he is running around inside of
that doesn’t even look at the facts. One of
the evidences of that is refusing to have
[N.M.] tested for an IEP [(Individualized
Education Program)], like that would be a
harm for her. And that’s typical of men in
my cases.
In all of the cases I’ve had, I’ve never
had a woman say that their child should
not have an IEP or does not have ADD.
Maybe it’s a social thing, that men are
raised to believe certain things, I don’t
know.
See N.T., 3/12/21 (“Findings of Fact.”), at 15 (emphasis added).
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The court ultimately found that Factors 9 and 10 favored Mother,
because she was the parent more likely to follow the advice of medical and
mental health professionals. Id. at 16.
On appeal, Father claims these passages evince the court’s gender
preference, in direct violation of Section 5328(b). For support, Father cites
our Supreme Court’s decision in Com. ex rel Spriggs v. Carson, 368 A.2d
635 (Pa. 1977), which questioned the legitimacy of the “tender years
doctrine”3 as being predicated upon the traditional or stereotypic roles of men
and women in a marital union. Father also cites the United States Supreme
Court’s momentous decision in Weinberger v. Wisenfeld, 420 U.S. 636, 652
(1975), which noted that “a father, no less than a mother, has a
constitutionally protected right to the companionship, care, custody, and
management of the children he has sired and raised, which undeniably
warrants deference and, absent a powerful countervailing interest,
protection.” (Internal quotations and citation omitted).
In response, Mother argues the trial court’s comments were obiter
dictum – that is, they were merely passing remarks. See Mother’s Brief at 9.
Alternatively, Mother argues that the court’s error was harmless. Id. Father
replied that the court’s comments could not be construed as obiter dictum, as
they spoke directly to the custody matter at issue, nor could the error be
construed as harmless. See Father’s Reply Brief at 7-9.
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3 The tender years doctrine was the now-disfavored theory that children
should reside with their mother – or “the residential parent” (read: the stay-
at-home mother).
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In its Rule 1925(a) opinion the court explained what it meant by its
statements:
In this particular case, Father was intractable for over two
years in his refusal to medicate his daughter for her ADHD.
Father first would not consent to the professionals who
recommended that she be evaluated for ADHD, then he
would not accept the diagnoses, and later, once he belatedly
accepted the diagnoses, he would not consent to the
medication repeatedly recommended. I pointed out that to
Father that, in my years of experience on the bench, it tends
to be fathers who refuse or are unable to acknowledge that
their children require medication for a psychological
condition, whereas mothers are willing to accept the
recommendations of professionals and teachers.
Though that has been my actual experience, that
experience is not what I depended on in reaching my
decision in this case. I mentioned this experience during
trial merely as an attempt to educate Father that he was,
despite his training and education, not unique. I hoped to,
perhaps, get him to examine his motivations and realize that
his reluctance to medicate his daughter was misguided, was
not in her best interests and had, in fact, caused a delay in
treatment which was harmful to her.
My references to the behavior of other fathers who have
appeared before me did not demonstrate any actual gender
bias. Nor did I base my award of custody on a preference
for Mother because of her gender. I preferred Mother as a
primary custodian and sole legal custodian in some areas
because her actions demonstrated that she put the needs of
her Children first and, moreover, she is willing to follow the
recommendation of the professionals with regard to the
treatment of her Children.
T.C.O. at 12-13 (emphasis added).
After review, we conclude that the court’s remarks do not evince a
gender preference under Section 5328(b). Perhaps the trial court’s
aspersions, though cast in the context of the court’s previous cases, did more
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harm than good. But these remarks alone do not merit reversal. As we have
explained:
The appearance of bias or prejudice can be as damaging to
public confidence in the administration of justice as the
actual presence of bias or prejudice. However, simply
because a judge rules against a party does not establish bias
on the part of the judge against that party. Along the same
lines, a judge’s remark made during a hearing in
exasperation at a party may be characterized as
intemperate, but that remark alone does not establish bias
or partiality.
Lewis v. Lewis, 234 A.3d 706, 722 (Pa. Super. 2020) (quoting
Commonwealth v. McCauley, 199 A.3d 947, 950-51 (Pa. Super. 2018)
(further citation omitted)). See also Interest of D.J.B., 230 A.3d 379, 386
(Pa. Super. 2020) (holding that a judge’s remark contextualizing the juvenile’s
delinquent act within the Me Too Movement did not establish bias or
partiality).
The question we must decide is simply whether the trial court abused
its discretion in awarding custody to Mother. In practice, discretion is abused
when the course pursued represents not merely an error of judgment, but
where the record shows that the action is a result of partiality, prejudice, bias
or ill-will. Lewis, 199 A.3d at 722 (citations omitted). At most, the trial
court’s commentary could be viewed as an error of judgment. But even then,
neither an error of judgment nor a remark made in exasperation constitutes
an abuse of discretion when the record supports the court’s decision.
Here, the court heard testimony that N.M. was in need of treatment,
that N.M. had gone without treatment because Father refused to give his
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consent, and that Father’s resistance to N.M.’s treatment was due to his
concern that the Child would be viewed as “crazy.” In other words, the court’s
remarks did not come out of the ether. Moreover, the court stated that it
shared parents’ hesitancy to medicate their children. Although the court
mentioned to Father that he would not be the first man to voice skepticism
about their children’s special needs, the court’s ultimate decision was not the
result of a gender preference. Rather, the award was properly based on the
application of the Section 5328(a) factor analysis, and the court’s individual
factor determinations were, in turn, supported by competent evidence and
legitimate credibility findings. Father’s first issue is without merit.
We turn next to Father’s second and third issues, which Father
addresses together. See Father’s Brief at 51-52. These issues also concern
remarks the court made during its on-the-record delineation of Factors 9 and
10, supra. Specifically, Father alleges that the court erred by taking judicial
notice of certain facts relating to ADHD, and then basing its custody decision
on the same.
During the delineation of the custody factors, the court determined that
Father’s inability to acknowledge N.M.’s special needs had caused her to go
untreated for her ADHD. Although the court did not find Mother blameless, it
determined that she was best suited to meet the Child’s needs because she
was more inclined to follow professional advice. In addressing Father’s
inability to tend to the Children’s needs, the court provided Father with an
example – namely, his resistance to having N.M. evaluated for an IEP. The
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court disapproved of Father’s resistance to the IEP evaluation, specifically
because he pushed for N.M. to be evaluated for above-average intelligence –
i.e., “gifted.” The inference being, Father did not oppose an evaluation of
N.M., so long as the evaluation was for something with a positive connotation.
In that sense, the court likened Father’s preoccupation with the stigma
associated with an IEP with his preoccupation with the stigma associated with
psychiatric treatment. It was during this explanation that the court stated it
was taking judicial notice.
The court: But it [(Father’s resistance to getting the
Child evaluated for an IEP)] clearly didn’t
help the child and she’s still - - we’re just not
getting her help. We still do not have her
with a psychiatrist. And she had pretty
severe evidence of ADHD, but Dad, while he
was insisting - - he refused to do that, and
he wanted a gifted test.
And I can take judicial notice and
personal notice, I have a gifted child and
a non-gifted child, you can tell. It’s
really easy to tell. Other people don’t tell
you that. You know. And it’s very evident.
And of course, the child does not evidence
any gifted abilities. That doesn’t mean she’s
stupid. She’s very bright. Of course, she’s
bright. But now we know she’s not gifted.
Why do you [(Father)] even want – she
wasn’t anywhere near the gifted cut off. I
wouldn’t have had a problem with asking to
have her referred to as gifted. I did have a
problem with her not – with not saying she
didn’t have ADHD just based [on] things
people had told you.
N.T. (Findings of Fact) at 15-16 (emphasis added).
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On appeal, Father argues the court abused its discretion by taking
judicial notice of information outside of the record. See Father’s Brief at 52.
Father contends that the court projected its own beliefs about the best
interests of a child with ADHD, instead of properly relying on the expert
testimony of Dr. Marlan. Id. Father reasons that the record does not support
the trial court’s finding that Father denied treatment for N.M.’s ADHD. He
concludes that the trial court’s “imposition of judicial notice upon the parties
played a significant part in the overall determination, as it resulted in an award
of sole legal custody to Mother for all of the children’s psychiatric treatment
and a reduction of Father’s custody time.” Id. at 54.
Initially, we question the accuracy of Father’s depiction of what the court
judicially noticed. As far as we can tell from the record, the court’s statement
about judicial notice referred to one’s ability to tell a gifted child from a non-
gifted child. The offending statements did not pertain to ADHD, at least not
directly. The court explained that it did not have a problem with Father
thinking N.M. was “gifted” when she was not, but that his refusal to
acknowledge N.M’s special needs had caused the child to go without necessary
treatment.
In response, Mother makes this exact argument. See Mother’s Brief at
48. Mother reasons that the difference between a gifted and non-gifted child
was not a fact the court was deciding in this case, nor was it at issue. Mother
contends that none of the court’s custody determinations was based on that
statement, and thus Father was not prejudiced. Mother concludes that the
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statement was dicta, or in the alternative, the statement was harmless error.
Id.
We are inclined to agree with Mother’s position. Curiously, however,
the court specifically admitted in its Rule 1925(a) opinion that it took judicial
notice of the symptoms and treatment of ADHD. The court stated, in relevant
part:
I did take judicial notice of the symptoms and
treatment for ADHD, which is not inappropriate as
these are, in fact, common knowledge. […] Father
takes issue, apparently, with comments I made regarding
my personal experiences with the condition as well as my
familiarity with literature on the subject. Father ignores the
fact that a reading of my order in this matter demonstrates
that my previous knowledge regarding ADHD did not
impact my deliberation or weighing of the custody
factors.
To the contrary, my decisions were based squarely on the
often-inappropriate behavior of the parties, particularly
Father, as they were faced with addressing N.M.’s ADHD and
the impact that behavior has had on N.M. and their other
Children. I found that Father’s neglectfulness, his
intractability, his inconsistence, and his deceitfulness made
it appropriate for Mother, who has her own less harmful
shortcomings, to have more custody time in the school year
as well as sole legal custody concerning psychiatric care.
T.C.O. at 13 (capitalization adjusted) (emphasis added).
The Pennsylvania Rules of Evidence provide the types of facts a court
may take judicial notice: “The court may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.”
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Pa.R.E. 201(b)(1)-(2). “Thus, in deciding whether a trial court erred in taking
judicial notice, we must determine whether the notice was of an indisputable
fact, i.e., one which is so commonly known that it need not be supported with
evidence[.]” In Interest of D.S., 622 A.2d 954, 960 (Pa. Super. 1993).
The symptoms and treatment for ADHD are not the sort of “indisputable
facts” “so commonly known” that they can be supported without evidence.
Indeed, the Children’s mental health and their treatment were a centerpiece
of the custody trial, as well as a focus of Dr. Marlan’s expert testimony. These
facts were the most disputed. That the specifics of N.M.’s diagnosis and
treatment were the subject of expert testimony only further demonstrates
that these facts are not “commonly known,” regardless of whether the trial
court had personal or professional experience with the matter.
The question now becomes how to proceed in light of the court’s error.
The harmless error doctrine is designed to advance judicial economy by
obviating the necessity for a retrial. Commonwealth v. Allshouse, 36 A.3d
163, 182 (Pa. 2012). Under the harmless error doctrine, the question is
whether the party claiming error suffered prejudice from the mistake. See
J.C. v. K.C., 179 A.3d 1124, 1129-1130 (citing Harman ex rel. Harman v.
Borah, 756 A.2d 116, 1122 (Pa. 2000)).
Father argues that the court’s reliance on its own understanding of
ADHD played a significant part in the overall custody determination. However,
the court explained it was the parents’ behavior and their high degree of
conflict that warranted the sole legal custody award. The court reasoned that
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Mother was the more suitable custodian between the two, because she was
more inclined to heed professional advice. Beyond N.M.’s need for ADHD
treatment, the court determined Father’s parenting style left the Children in
need of structure and stability during the school year. Most importantly, the
court explicitly stated that its previous knowledge of ADHD did not impact its
deliberation or weighing of the custody factors. Rather, the court explained
that its basis for the award was the underlying testimony and evidence
regarding N.M.’s need for treatment, and Father’s refusal to ensure the same.
See T.C.O. at 12, 13. The record supports the court’s decision.
Furthermore, as we noted above, the cited instance of the court’s
judicial notice was about one’s ability to distinguish gifted children from non-
gifted children. That the court mentioned this in passing demonstrates the
tangential nature of the remarks. The court’s comments about gifted children
are not much different than its aforementioned comments about gender –
imprudent perhaps, but not erroneously prejudicial. We therefore conclude
that, insofar as the court improperly acknowledged it had personal experience
regarding ADHD – or the ability to tell gifted children apart from non-gifted
children – the court’s error was harmless. Father’s second and third issues
merit no relief.
Having disposed of those issues ancillary to the substantive custody
decision, we turn now to the crux of Father’s appeal – namely, the legal and
physical custody awards. We begin with Father’s fourth issue. He argues the
trial court erred when it awarded Mother sole legal custody to make mental
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health decisions on behalf of the Children. See Father’s Brief at 31. According
to Father, the error was the court’s misapplication of certain criteria which he
claims must be analyzed when departing from a shared custody award. The
four additional factors are:
(1) whether both parents are fit, capable of making
reasonable child rearing decisions, and willing and be able
to provide love and care for their children; (2) whether both
parents evidence a continuing desire for active involvement
in the child's life; (3) whether the child recognizes both
parents as a source of security and love; (4) whether a
minimal degree of cooperation between the parents is
possible.
See Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008)
(quoting Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998) (hereinafter “the
Yates-Wiseman factors”).
Immediately, we recognize that Father’s argument is predicated on
decisions which have been superseded by the current iteration of the Child
Custody Act. See P.J.P. v. M.M., 185 A.3d 413, 420 (Pa. Super. 2018); see
also S.T., 192 A.3d at 1170.
In P.J.P., the appellant-father argued that the trial court erred when it
denied his petition for shared physical custody without first considering the
four Yates-Wiseman factors. We explained that Father’s reliance on
Wiseman (and other progeny decisions applying the same four-factor rule)
was misplaced, because those cases were decided before Section 5328(a)
came into effect on January 1, 2011. We held that Section 5328(a)(1)-(16)
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now incorporates each of the four Yates-Wiseman factors. P.J.P., 185 A.3d
at 420.
But this was not the most critical departure from Wiseman. We also
noted that Wiseman, by its terms, required the trial court “to make at least
a minimal finding that the parties were able to cooperate before awarding
shared custody.” P.J.P., 185 A.3d at 420 (citing Wiseman, 718 A.2d at 849).
We concluded that this rule contradicted the plain language of the current
iteration of the Child Custody Act. Unlike Wiseman, Section 5328(a) does
not require certain threshold findings before a court may award shared
custody. Under the current statute, courts must now consider all relevant
factors, including the “ability of the parties to cooperate,” when making an
award of any form of custody; poor cooperation would not be dispositive.
P.J.P. at 420. Simply put, the enactment of Section 5328(a) rendered the
Wiseman analysis obsolete. Id.
In S.T. v. R.W., supra, we reaffirmed P.J.P. and applied its holding to
the legal custody analysis. The court may only consider those factors set
forth in Section 5328(a); the Yates-Wiseman factors have been assimilated.
See S.T., 192 A.3d at 1170.4
____________________________________________
4 By contrast, we held that those additional factors unique to cases involving
incarcerated parents – commonly referred to as the Etter facts – must still be
considered in such a custody analysis under Section 5328(a)(16) (any other
relevant factor). S.T. at 1166-67; see also M.G. v. L.D., 155 A.3d 1083,
1093-94 (Pa. Super. 2017) (citing Etter v. Rose, 684 A.2d 1092, 1093 (Pa.
Super. 1996) and D.R.C. v. J.A.Z., 31 A.3d 677, 678 (Pa. 2011)).
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Instantly, Father argues the court erred by divesting him of shared legal
custody, because the record illustrated that the four Yates-Wiseman factors
favored both parties equally. See Father’s Brief at 31-25. Thus, Father
contends that the trial court misapplied the requisite threshold determination,
as provided Wiseman. The trial court was also under the mistaken belief that
legal custody must be decided in accordance with the Yates-Wiseman
factors.5 Notably, Father does not argue the court erred for considering the
Yates-Wiseman factors; rather, he argues that the Yates-Wiseman factors
support his position. As we stated in P.J.P., and reaffirmed in S.T., the
current iteration of the Child Custody Act does not require the court to make
a threshold determination before awarding sole or primary custody. Thus,
Father’s fourth issue merits no relief.6
In Father’s fifth issue, the focus shifts from legal custody to physical
custody. Father argues that the “totality of the facts and evidence of record
elicited at trial supported an award of shared physical custody[.]” See Father’s
Brief at 35. He provides a litany of facts, corresponding with each Section
5328(a) factor, which supports his position that shared physical custody was
in the best interests of the Children. See generally id. at 37-51. Father adds
that the trial court erroneously ignored the recommendation of the
____________________________________________
5 Mother was similarly mistaken.
6 We note here, for the benefit of the parties and the trial court alike, that
even if Father properly challenged the legal custody award, we would still
conclude the legal award was supported by the record.
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psychological custody evaluator, Dr. Marlan, who recommended shared
physical custody. Id. at 49.
Critically, Father misunderstands our appellate function. When
reviewing a custody decision for an abuse of discretion, the question is not
whether the record could have supported an alternative custody award – e.g.,
one advocated by the appellant – but whether the record supports the court’s
decision. Quite often, the record will also support a contrary result. So much
of a custody award depends upon the weight given to each factor, which in
turn, depends upon the weight given to evidence and testimony.
As we mentioned above, it is within the trial court’s purview, as the
finder of fact, to determine which factors are most salient and critical in each
particular case. M.J.M., 63 A.3d at 339. On issues of credibility and weight
of the evidence, we defer to the findings of the trial court who has had the
opportunity to observe the proceedings and demeanor of the witnesses. A.V.
v. S.T., 87 A.2d 818, 820 (Pa. Super. 2014) (citation omitted). The parties
cannot dictate the amount of weight the trial court places on evidence. Id. To
that end, the trial court was not required to accept the expert evaluator’s
recommendation. See Jacob v. Shultz-Jacob, 923 A.2d 473, 478-79 (Pa.
Super. 2007). The ultimate test is whether the trial court’s conclusions are
unreasonable as shown by the evidence of record. S.T., 192 A.3d at 1160.
With this standard in mind, we turn to the trial court’s rationale behind
its award. First, the trial court explained how it weighed certain Section
5328(a) factors:
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I found that Father also limited the Children’s
communication with their Mother, and spoke disparagingly
about her, resulting in Factor 1 favoring Mother. Overall,
based on my factor analysis, particularly Factors 9 and 10 –
I found it was in the best interest of the Children that Mother
have primary custody and that Father’s custody time be
slightly curtailed during the school year. I also found that
the Children were safer with Mother. While I found neither
parent to be abusive under Factor 2, I found, as noted, that
Father was often neglectful. Additionally, I placed a great
deal of weight on Factor 13, the level of conflict between the
parties, which my order should serve to reduce.
T.C.O. at 8 (capitalization adjusted) (citations to the record omitted).
We also observe the trial court found Father’s testimony to be
problematic:
I also must note…that I often found Father’s testimony to be
lacking in credibility, which had a significant impact on my
findings. At times, I found statements Father made to be simply
untrue. At other times, I found that Father sees his actions in a
light which is simply unrealistic. Whether he was lying to this
court, or to himself is immaterial to me. The relevance to me was
that his judgment, whether purposefully or not, was implemented
in a way which was harmful to his children, especially N.M.
Id. at 7 (footnote omitted).
The court also explained why it did not agree with Dr. Marlan’s
assessment:
[Dr. Marlan] referred to Father’s parental style as “child-
centered, permissive, and easy going.” “Free-range, but not
irresponsible.” I did not agree with her assessment of
Father’s “style” of parenting, which I found bordered on
neglectful. While Mother, who [Dr. Marlan] referred to as
“rule-setting,” may be hyper-vigilant to some degree, I
determined that the Children needed more rules and
stability than they receive with Father.
Id. at 7-8 (capitalization adjusted) (citations to the record omitted).
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The trial court concluded that, in this high-conflict case, its job was not
to award custody to the “best” parent as a prize, but to design a custody
scheme which best serves the needs of the Children. Id. at 8. As these
conclusions are not unreasonable as shown by the evidence, we discern no
abuse of discretion. Father’s fifth issue is without merit.
We turn to Father’s final issue, wherein he claims the trial court erred
by “failing to explicitly rule on the request for legal custody regarding the
religion of the children and/or restricting Father’s ability to freely exercise his
religion.” See Father’s Brief at 54. Preliminarily, we observe that Father’s
challenge presents a question of law, and thus our standard of review is now
de novo and our scope of review in plenary. See E.C.S., 256 A.3d at 454.
Prior to the parties’ divorce, the family observed the Jewish faith.
Indeed, the parties’ initial custody order awarded alternating custody during
certain Jewish holidays. Recently, however, Father joined the Unitarian
Universalist Church, and he had attended services with the Children. In
Mother’s counterclaim for custody, Mother filed for sole legal custody
regarding the Children’s religion. Mother stated: “Over [Mother’s] protest,
[Father] is introducing, involving and enrolling the Children into a new religion
which stands in stark contrast to the religion in which the parties agreed to
raise the Children during the marriage[.]” See Mother’s counterclaim for
primary physical and sole legal custody at ¶5(c). In Father’s amended petition
to modify custody, Father also requested sole legal custody regarding the
Children’s religion.
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The court did not grant either party sole legal custody regarding the
Children’s religion. However, the court did include Paragraph 1.9(a), which
provides:
Father must continue to cooperate with the Children’s
participation in the Jewish Faith, as the parties agreed to
this when married and enormous efforts have been
expended by all.
Order of Court, 3/12/22, at ¶1.9(a).
Before we reach the merits of Father’s sixth appellate issue, we note our
confusion as to what, precisely, Father seeks to challenge. Contrary to
Father’s assertion, the trial court explicitly awarded shared legal custody to
make religious decisions. Of course, the court included Paragraph 1.9(a), and
Father requests this provision be stricken from the order. Id. at 57. Thus,
we construe Father’s argument to mean that Paragraph 1.9(a) restricts his
ability “to freely exercise his religion.” Id., at 54.
In its Rule 1925(a) opinion, the trial court explains its order does not
restrict Father’s free exercise of religion, but merely obligates him to
cooperate with the Children’s participation in Judaism – the family’s observed
religion before the parents separated. See T.C.O. at 13. The court reasoned
that nothing in its order restricts Father from taking the Children to worship
anywhere he pleases during his custody time. The trial court defended the
inclusion of Paragraph 1.9(a), opining:
While I did not restrict Father’s right to practice whatever
religion he pleases, I nonetheless felt it important to prevent
him from interfering with the religious education of his
Children to which Mother has been attending. Due to the
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intractable nature of both parties, but particularly Father, I
concluded that he had to be ordered to support their long
practiced religious training in Judaism.
Id. at 14.
Turning to our relevant precedents, we observe that parent’s right to
raise a child in accordance with certain religious beliefs has often been referred
to as a “hybrid” matter – one that exists at the intersection between the First
and Fourteenth Amendments. See Shepp v. Shepp, 906 A.2d 1165, 1172
(Pa. 2006) (citing Employment Div. Dep’t of Human Res. of Oregon v.
Smith, 494 U.S. 872, 882 (1990) (reaffirming a higher level of scrutiny for
cases involving a free exercise claim made in conjunction with our
constitutional protections, such as the right of a parent to direct the upbringing
and education of the child). Protections afforded by First Amendment are
made applicable to the states through the Fourteenth Amendment. See, e.g.,
S.B. v. S.S., 342 A.3d 90, 104 (Pa. 2020).
Under the Due Process Clause of the Fourteenth Amendment, a parent
has a fundamental right “to make decisions concerning the care, custody, and
control of the child.” D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016); and see Troxel
v. Granville, 530 U.S. 57 (2000). Under the Free Exercise Clause of the First
Amendment, an individual has a right to religious freedom. Zummo v.
Zummo, 574 A.2d 1130, 1138 (Pa. Super. 1990); see also Wisconsin v.
Yoder, 406 U.S. 205 (1972). Read together, parents have the constitutionally
protected “right to direct the religious upbringing of their children.” Shepp,
906 A.2d at 1169 (citing Yoder 406 U.S. at 233).
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Both the parties and the trial court rely on Zummo, supra. Although
Zummo is particularly analogous to the instant case, we note its limited value.
While a published opinion, Zummo was decided by a three-judge panel which
included one concurring vote and one dissenting vote. See also Shepp, 906
A.2d at 1178 n.6 (Justice Baer – Dissenting). Nevertheless, we find some of
its analysis persuasive, particularly that portion which relies on prior
precedent, as we explain infra.
In Zummo, the mother was raised Jewish and actively practiced her
faith since childhood. The father was raised Roman Catholic, but he attended
service sporadically. Prior to their marriage, they agreed that any children
would be raised Jewish. During their marriage, the parties had three children
and were active members in their synagogue and Jewish community. At the
time of their separation, the oldest child was preparing for his bar mitzvah and
was required to attend preparatory classes each week, to participate in
Saturday services, and to attend Sunday school; the middle child was about
to begin her formal Jewish education at Sunday school. After separation, the
father refused to arrange for the oldest child’s religious obligations while
exercising his partial custody time. The father also sought to take the children
to the occasional Roman Catholic mass as he saw fit; at the time, the children
had never been to any service outside of the Jewish faith. Zummo, 574 A.2d
at 1141.
The trial court prohibited the father from taking the children to any
service “contrary to the Jewish faith,” and it ordered the father to take the
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children to Sunday school during his custody time. The trial court’s principal
justification was the perceived risk of harm to the children arising from their
exposure to a new religion, i.e., that the children would become disoriented
or confused by the “contradictory” faiths. The father appealed, arguing that
the trial court infringed upon his First Amendment right to free exercise when
it prohibited him from instilling his religious beliefs in the children.
This Court agreed. First, we also noted that the parties’ prior, informal
agreement to raise the children Jewish was irrelevant, as was the father’s
relative devoutness. Id. at 1130, 1152 (citing JIRB v. Fink, 532 A.2d 369
(Pa. 1987)). Next, we concluded that any “harm” which might befall the
children if they were exposed to Catholicism was patently insufficient to justify
government encroachment upon a parent’s constitutional rights. Id. at 1155.7
Thus, we vacated the provision of the trial court’s order prohibiting the father
from taking his children to Catholic mass.
____________________________________________
7 When our Supreme Court later decided a similar issue in Shepp, it clarified
the “harm” that courts must consider when restricting a parent’s right to free
exercise:
[A] court may prohibit a parent from advocating religious
beliefs, which, if acted upon, would constitute a crime.
However, pursuant to Yoder, it may do so only where it is
established that advocating the prohibited conduct would
jeopardize the physical or mental health or safety of the
child, or have potential for significant social burdens.
Shepp, 906 A.2d at 1174 (citing Yoder, 406 U.S. at 233-34).
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However, we did not vacate that portion of the trial court’s order
obligating the father to take the children to their Jewish religious classes every
Sunday. We stated: “Both parents have rights to inculcate religious beliefs in
their children. Accordingly, the trial court may constitutionally accommodate
the mother’s rights with a directive of the type imposed here, which essentially
carves out a time period each Sunday during which the mother had the right
to custody and control of the children.” Id. at 1157 (citing Rinehimer v.
Rinehimer, 485 A.2d 1166, 1186 (Pa. Super. 1984)).
In Rinehimer, we upheld a similar custody order. There, the mother
practiced Roman Catholicism and the father practiced Lutheranism. The trial
court issued an order awarding the father partial custody every Wednesday
and every Friday to Saturday. The father argued that this custody
arrangement effectively prohibited him exposing the children to his faith,
because he would hardly ever have custody during Sunday church service.
Rinehimer, 485 A.2d at 1167-1168. In affirming the trial court’s custody
order, we explained:
The [trial] court scrupulously avoided any comment which
would result in one parent's religious beliefs being favored
over the other. The court placed no prohibition upon either
parent against taking the children to services of his or her
faith, discussing religious beliefs, or in any other way
exposing the boys to their respective faiths. Granted, [the
father] is effectively prevented from taking his sons to
Sunday morning services most of the year. But appellant
himself stated that he agreed the boys should be raised [in
the mother’s Catholic faith] until they were older. We find
that the partial custody schedule for the father was not
designed to frustrate his religious viewpoint, but was
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designed solely in the best interests of the boys in
establishing a stable schedule of partial custody.
Id. at 1168-69.
Returning to the instant case, Father argues that Paragraph 1.9(a)
should be stricken, because Mother was awarded holiday custody time while
he was not. But if Father cites his lack of holiday custody time as a reason
why he should not have to be burdened by the Paragraph 1.9(a) cooperation
mandate, we find such an argument to be inapposite to the issue at hand.
And as we noted in Rinehimer, a physical custody order might have the effect
of preventing a parent from worshiping with their child, but the order will be
upheld where there is no prohibition against their religious upbringing. See
Rinehimer, 485 A.2d at 1168-69.
Ultimately, we read the Paragraph 1.9(a) of the custody order –
obligating Father to “cooperate with the Children’s participation” in Judaism –
to be akin to that lawful portion of the Zummo order directing the father to
take the child to bar mitzvah classes. Although the trial court ordered Father
to cooperate, the court did not prohibit Father from imparting his religious
beliefs in the Children, nor did the court prohibit Father from taking the
Children to his religious service during his custody time. See also
Rinehimer. Moreover, the trial court explained that its rationale behind
Paragraph 1.9(a) had little to do with religion, and more to do with Father’s
penchant for interfering with Mother’s exercise of custody. See T.C.O. at 14.
Because we conclude the trial court did not restrict Father’s ability to inculcate
the Children with his religious beliefs, we do not reach the question of whether
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the restriction was constitutional. See Shepp, 906 A.2d at 1174 (citing
Yoder, 406 U.S. at 233-34). Our analysis may end here.
Still, we would be remiss not to address Father’s holiday argument in
more detail, as the same was of particular focus in his Brief and Reply Brief.
To the extent Father seeks to raise a separate claim – i.e., that the trial court
erred when it denied his request for holiday custody but awarded Mother the
same – we conclude this issue is waived for the following reasons.
Pennsylvania Rule of Appellate Procedure 2116(a) provides that “[t]he
statement of the questions involved must state concisely the issues to be
resolved, expressed in the terms and circumstances of the case but without
unnecessary detail.” Pa.R.A.P. 2116(a). “No question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.” Id. Although the formally stated question will be deemed to include
every subsidiary question fairly comprised therein, we have said that this
Court cannot conduct a meaningful review if it must guess what issues an
appellant is appealing. C.H.L. v. W.D.L., 214 A.3d 1272, 1278 (Pa. Super.
2019) (citing Pa.R.A.P. 2116(a)).
The specific claim Father presents in this appeal is whether the trial
court failed “to explicitly rule on the request for legal custody regarding the
religion of the children and/or restricting Father’s ability to freely exercise his
religion in violation of the First Amendment of the United States.” See
Father’s Brief at 22. Father’s ultimate request is that Paragraph 1.9(a) be
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stricken from the order and that shared legal custody regarding religion be
granted to the parties. See id. at 56.
First, we do not construe the denial of Father’s holiday custody to be a
subsidiary issue of whether the trial court failed to explicitly rule on legal
custody. Section 5322 defines “legal custody” as “the right to make major
decisions on behalf of the child, including, but not limited to, medical,
religious, and educational decisions.” 23 Pa.C.S.A. § 5322 (emphasis
added). Here, the court clearly awarded both parents shared legal custody to
make religious decisions on behalf of the Children. Father’s request for holiday
time was a request for “physical custody” – that is, “[t]he actual physical
possession and control of a child.” Id. The question of physical custody is not
“fairly suggested” by the question of legal custody. See Pa.R.A.P. 2116(a).
Second, we do not find the question of whether Father is entitled to his
own holiday time to be a subsidiary question of whether the court may
properly mandate Father’s cooperation in Children’s participation in Mother’s
faith. Evidently, the trial court did not even think to address the holiday
physical custody issue in its Rule 1925(a) opinion. There is no nexus between
the court’s mandate that one parent cooperate in a child’s participation in a
religious practice and the court’s denial of a request for holiday custody time.
Perhaps there is nexus between a First Amendment infringement claim
and an award of holiday physical custody, but we decline to proclaim one
based on Father’s ambiguous suggestion. In other words, we will not guess
or speculate that this is what Father meant to argue. See C.H.L., supra. “It
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is not the duty of this Court to act as appellant’s counsel, and we decline to
do so.” C.H.L.., 214 A.3d at 1277. Moreover, “[i]t is not the prerogative of
an intermediate appellate court to enunciate new precepts of law or to expand
legal doctrines. Such is a province reserved to the Supreme Court.” Matter
of M.P., 204 A.3d 976, 986 (Pa. Super. 2019) (citation omitted).
To be clear, we acknowledge Father’s argument concerning holiday time
is tied to Zummo and not spun from whole cloth. The Zummo Court posited,
in dicta, that a custody order which awards a Christian parent custody during
Christian holidays, but does not award the Jewish parent custody during
Jewish holidays might “constitute an impermissible restriction on religious and
parental rights, and a violation of the Establishment Clause, albeit an indirect
one.” Zummo, 574 A.2d at 1157-58. But the Zummo holding has limited
precedential value (as we mentioned above), its dicta even less. Thus,
contrary to Father’s characterization in his Brief, this Court has not forbidden
a trial court from granting one parent’s request for religious holidays without
acknowledging the other’s. See Father’s Brief at 56.
Absent further guidance from our Supreme Court, we are not entirely
convinced the “hybrid” constitutional analysis is necessary in every custody
dispute between parents. It certainly can be, as demonstrated in Shepp,
supra. But there, the constitution was implicated because the trial court (i.e.,
the government) regulated the content of the parent’s speech, when it
prohibited the father from speaking to the child about polygamy and Mormon
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fundamentalism. See Shepp, 906 A.2d at 1174.8 Put another way, the law
is not so developed on these matters, making it is obvious to us that the
holiday custody claim is “fairly suggested” by the explicit issue Father raised
in his Brief. Thus, insofar as Father meant to raise a separate claim regarding
his denied request for holiday time, we conclude Father circumvented
Pa.R.A.P. 2116(a) and that the issue is waived.
To conclude: the trial court did not based its Section 5328(a)
determinations on gender preferences; the trial court erred when it took
judicial notice of the symptoms and treatment of ADHD, but the error was
harmless; the trial court did not have to make a threshold determination
before awarding sole legal shared custody, because the current iteration of
the Child Custody Act has superseded the decisions in Yates and Wiseman;
the trial court did not abuse its discretion as to its physical custody award, as
its conclusions were not unreasonable in light of the record; the trial court did
____________________________________________
8 But see id. at 1174-75 (Justice Eakin – Concurring) (“With parents in conflict
concerning how [the] daughter should be raised in this regard and with each
having an equivalent fundamental right to direct [the] daughter’s upbringing,
I would conclude the fundamental rights of one parent are not superior to the
fundamental rights of the other. For analytical purposes, they “cross-out” one
another, leaving us with an analysis based on the best interests of the child –
the hallmark of every custody matter – without applying strict scrutiny.
Applying strict scrutiny to the trial court’s order based upon [the] father’s First
Amendment rights gives him a tremendous advantage in the custody dispute
over whether [the] daughter should be taught about plural marriage, since
the strict scrutiny test is rarely met.”).
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not infringe on his First Amendment right to free exercise when it ordered
Father to cooperate with the Children’s participation in Judaism.9
Order affirmed. Application for further costs denied. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2022
____________________________________________
9 Mother has filed an application for further costs in which she takes issue with
Father’s “willful failure” to include certain documents in his reproduced record,
thereby forcing her to incur the costs of preparing and filing supplemental
reproduced records. In his answer, Father denies Mother’s claim. This Court
had requested and reviewed the certified record in this appeal. Mother’s
application for further costs is denied.
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